Legal Commentary

Feds May Sue Arizona Over Immigration

By Jonathan H. Adler

Today?s Washington Post reports that the Justice Department is considering whether to challenge Arizona?s new immigration law.

A key legal ground being considered, officials said, is the doctrine of ?preemption? ? arguing that the state?s law illegally intrudes on immigration enforcement, which is a federal responsibility.

The White House probably will make the final call, given that the issue is fraught with legal and political implications. Senior administration officials indicated Wednesday that Holder?s remarks about the legislation ? he said he is ?very concerned? that it could drive a ?wedge? between law enforcement and immigrant communities ? should be taken very seriously. . . .

Homeland Security Secretary Janet Napolitano indicated in congressional testimony Tuesday that federal reviewers are considering a preemption argument.

?The first thing that needs to be done is for the Justice Department to review whether the law is constitutional under the laws governing the supremacy clause and under the laws governing preemption,? she said, adding: ?Is it constitutional or not??

Meanwhile, there is a cert petition pending in U.S. Chamber of Commerce v. Candelaria, a case involving a preemption challenge to another Arizona immigration law .  This law imposes sanctions on employers who employ illegal aliens or other unauthorized workers, and was signed into law by then-Gov. Janet Napolitano.  The Supreme Court has requested the views of the Solicitor General in this case, so it will be worth watching.  There is also another potentially cert-worthy preemption case out of the 10th Circuit.  While these cases raise different issues, they could shed light on whether the new Arizona law would survive a preemption challenge.

Full post as published by The Volokh Conspiracy on April 29, 2010 (boomark / email).